In EEOC v. KB Staffing LLC, a Florida district
court recently dismissed class action allegations brought under the Americans With Dis-abilities Act by the U.S. Equal Employment
Opportunity Commission against a staffing
firm. The court found that EEOC did not allege
actual damages suffered by class members
who were asked to complete a pre-employment medical questionnaire that included
disability-related questions.

In 2012, an applicant filed a charge of discrimination with the EEOC, alleging the staffing firm required her to complete a medical
questionnaire during the pre-employment
application process and that she was not hired
after she refused to do so. In response to her
charge, the EEOC commenced an investigation
that lasted nearly three-and-a-half years. In
2016, the EEOC filed a class action on behalf
of the applicant and all other applicants who
applied for positions with the staffing firm
over a two-year period, during which the pre-employment medical questionnaires were
allegedly used.

The court noted that, despite the EEOC’s
lengthy investigation, the lawsuit alleged only
conclusory allegations of damages suffered
on behalf of the class members, without any
factual support, and dismissal was appropriate.
The court allowed the case to proceed solely on
the procedural matter of issuing a permanent
injunction enjoining the staffing firm from utilizing preoffer medical inquiries in the future.

ASA Publishes Revised Worker Misclassification Issue Paper

ASA has published a revised issue paper on the adverse consequences, to both
staffing firms and clients, of misclassifying temporary workers as independent contractors. The issue paper, “What’s in a Name? Misclassifying Employees as Independent Contractors Can Be Costly,” informs staffing firms of the applicable legal tests
regarding worker classification, and includes a sample letter warning clients that they
may face liability if they use staffing firms that classify temporary workers incorrectly.
Read the issue paper in the Law & Advocacy section of americanstaffing.net.

Staffing firms are reminded that the ADA
places restrictions on staffing firms regarding
when they may ask job applicants to answer
medical questions, take a medical exam, or
identify a disability. Any pre-employment,
postemployment, or medical questionnaires
or exams should be reviewed with expert
legal counsel. To learn more about the ADA’s
restrictions on job applicant inquiries, see
the EEOC documents “Enforcement Guidance: Application of the ADA to Contingent
Workers Placed by Temporary Agencies and
Other Staffing Firms” and “Questions and
Answers: Enforcement Guidance: Application
of the ADA to Contingent Workers Placed
by Temporary Agencies and Other Staffing
Firms” at eeoc.gov.

—Brittany Sakata, ASA

ASA ADVOCACYASA, TAS Score Significant SalesTax Win

In a major victory for Texas staffing firms
with long-term client contracts, in Allstate
Insurance Co. v. Hegar the Texas Supreme
Court in April let stand an appellate court’s
decision that, for purposes of a sales tax
exclusion for “temporary employment services” under Texas law, the tenure of the individual worker—not the length of the staffing
agreement—governs whether the service is
temporary and excluded from sales tax. ASA
and the Texas Association of Staffing, an
ASA-affiliated chapter, filed a brief before the
supreme court urging it to uphold the appellate court’s decision.

The case involved insurance adjustersassigned to Allstate by a specialty firm sup-plying only those types of workers. Theparties had a long-term contract underwhich adjusters were supplied to Allstate, asneeded, to handle insurance claims arisingmostly from weather-related catastrophes.The number of adjusters assigned to All-state varied widely in any given year, andthe adjusters’ tenure was strictly temporary,usually lasting between 60 and 90 days.

Allstate filed for a refund of previously
paid state sales taxes, arguing that the
adjuster services were “temporary employment services” that are excluded from sales
tax under Texas law. The state comptroller
denied the refund, arguing that the services
were provided year-round under a long-term contract and thus were not temporary
employment services within the meaning
of the sales tax statute. The comptroller
asserted, moreover, that the “taxable trans-

Staffing firms are reminded that the
ADA places restrictions on staffing
firms regarding when they may ask
job applicants to answer medical
questions, take a medical exam, or
identify a disability.